Gallagher v Veterinary Practitioners Board of New South Wales

NCAT Occupational|2014-03-28

reasons for decision 1The applicant, Dr Juliana Gallagher, is a registered veterinarian and has been in practice since 2003. 2On 19 October 2012, the respondent, the Veterinary Practitioners Board of New South Wales (the Board) received a complaint about the manner in which the applicant had treated the complainants' dog, a 10 year old de-sexed male German Shepherd. The Board investigated the complaint under section 42 of the Veterinary Practice Act 2003. 3On 23 May 2013, the Board wrote to the applicant to inform her that it had completed its investigation and found that she was guilty of unsatisfactory professional conduct in breach of cl 4, 5 and 8 of the Veterinary Practitioners Code of Professional Conduct (the Code of Conduct). In this regard the Board found the following: '[the applicant] failed to carry out treatment in a timely fashion despite the dog being assessed as 'critical care level 1' with bloat, gastric dilation, foreign body or primary bladder infection [the applicant] accepted an animal for diagnosis or treatment and ... did not ensure that [she was] available for the ongoing care of the animal or did not make arrangements for another veterinary practitioner to take over the care of the animal [the applicant] failed to offer timely referral to another practice 4Based on these findings, pursuant to section 47(2) of the Veterinary Practice Act, the Board resolved to issue a caution and impose a fine of $500.00 and also impose an amount of $500.00 in costs for the hearing. 5On 17 September 2013, the applicant lodged this application, pursuant to section 48 of the Veterinary Practice Act seeking administrative review of the Board's decision. 6The applicant's application came before the former Administrative Decisions Tribunal (ADT) at directions hearings on 29 October and 3 December 2013. Directions were made for the filing and serving of evidence and on 3 December 2013, the matter was set down for hearing on 28 March 2013. 7As anticipated, on 1 January 2014, prior to the hearing of the applicant's application, the NSW Civil and Administrative Tribunal was established and on its establishment the ADT was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the tribunal) being vested with all the relevant functions of the ADT immediately before its abolition and the provisions of the Administrative Decisions Tribunal Act 1997 and the Veterinary Practice Act continuing to apply. 8The applicant's application was heard on 23 March 2014. At the commencement of the hearing, Mr Shaw, counsel for the applicant, made an application that the hearing be adjourned as he had only recently been instructed to appear on her behalf. After hearing arguments from both sides, we refused the application for an adjournment and proceed with the hearing. 9At the conclusion of the hearing we made orders for the filing and serving of written submissions. These were filed on 24 April and 20 May 2014. 10We have now considered all the material before the tribunal and for the reasons set out below find that prima facie the applicant breached clause 8 of the Code of Conduct. However, given the circumstances we make no finding of professional misconduct, being the only finding available on a breach of clause 8 and yet not a finding made by the Board.

Evidence 11In support of her application, the applicant relied on the following material: (a)a statement she made and filed and served on 17 January 2014; (b)a statutory declaration of Dr Liia Kelman dated 27 November 2013; (c)a statutory declaration of Dr Greg Kelman, dated 28 November 2013; and (d)the applicant's written response to the Board's statement of decision. 12The applicant also gave oral evidence at the hearing and was cross-examined by Ms Hamblin, counsel for the Board. 13In support of its decision, the Board relied on a statement of Dr Georgina Child dated 18 February 2014 and the documents of the Board relating to the complaint, the Board's investigation and disciplinary decision. Dr Child, is a registered veterinary practitioner and a member of the Board and its Complaints Committee. Dr Child also gave oral evidence at the hearing and was cross-examined by Mr Shaw, counsel for the applicant.

Relevant legislation 14The Veterinary Practice Act 2003 (VP Act) makes provision for the registration and regulation of veterinary practitioners. The object of the Act is set out in section 3 as follows: 3 Object of Act The object of this Act is to regulate the provision of veterinary services for the following purposes: (a) to promote the welfare of animals, (b) to ensure that consumers of veterinary services are well informed as to the competencies required of veterinary practitioners, (c) to ensure that acceptable standards are required to be met by veterinary practitioners so as to meet the public interest and national and international trade requirements, (d) to provide public health protection 15Part 5 of the VP Act deals with complaints and disciplinary proceedings. 16Section 38 of the VP Act provides that any person (including the Board) may make a complaint against a 'veterinary practitioner in respect of the veterinary practitioner's conduct as a veterinary practitioner.' Such complaints are made to the Board and subs 42(1) of the VP Act provides that the Board 'must', subject to the provisions in Part 5, conduct an investigation into each complaint that is made under that Part. 17Section 45 of the VP Act sets out the powers of the Board in investigating a complaint made under s 38 of the Act. Subs 47(1), of the Act provides that once the Board has completed an investigation of a complaint, the Board is to deal with the complaint under that section. That section relevantly provides as follows: 47 Decision after investigation of complaint (1) After the Board has completed an investigation into a complaint against a veterinary practitioner, the complaint is to be dealt with in accordance with this section. (2) If the Board is satisfied that the veterinary practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Board may: (a) apply to the Tribunal for a disciplinary finding against the veterinary practitioner under Division 3, or (b) take any one or more of the following actions: (i) reprimand or caution the veterinary practitioner, (ii) impose a fine on the veterinary practitioner of an amount not exceeding $5,000, (iii) impose conditions on the veterinary practitioner's registration with respect to the practice of veterinary science, (iv) require the veterinary practitioner to complete specified educational courses, (v) require the veterinary practitioner to report on his or her veterinary practice at specified times, in a specified manner and to specified persons, (vi) require the veterinary practitioner to seek and take advice, in relation to the management of his or her veterinary practice, from a specified person or persons, (vii) require the veterinary practitioner to pay specified costs relating to the hearing. (3) If the Board is satisfied that the veterinary practitioner is guilty of professional misconduct of a kind that is of a sufficiently serious nature to justify the suspension or cancellation of a veterinary practitioner's registration, the Board must apply to the Tribunal for a disciplinary finding against the veterinary practitioner under Division 3. (4) ... (5) ... (6) Without limiting section 46, the Board is to dismiss the complaint against the veterinary practitioner if it is satisfied that the veterinary practitioner is not guilty of either unsatisfactory professional conduct or professional misconduct. (7) The Board is to notify the veterinary practitioner of any action taken by the Board under this section. 18The terms 'professional misconduct' and 'unsatisfactory professional conduct' are defined in section 35 of the VP Act as follows: professional misconduct means: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of a veterinary practitioner's registration, or (b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act. unsatisfactory professional conduct means any of the following: (a) providing information relating to the veterinary practitioner's qualifications for registration knowing the information to be false or misleading in a material particular, (b) contravening Order 1998/1 made under section 46 of the Stock Medicines Act 1989 and published in Gazette No 108 on 17 July 1998 at pages 5496-5498 (or any Order amending or replacing that Order), (c) engaging in conduct in the veterinary practitioner's professional capacity that, if repeated or continued, is likely to do any of the following: (i) cause unnecessary suffering to an animal, (ii) cause the inappropriate death of an animal, (iii) adversely affect the safety or health of any person, (iv) damage the international reputation of Australia in relation to animal exports, animal welfare, animal produce or sporting events, (d) any contravention by a veterinary practitioner of the conditions of the veterinary practitioner's registration, (e) any failure by a veterinary practitioner to comply with a provision, prescribed by the regulations for the purposes of this paragraph, of the code of professional conduct in effect under section 37, (e1) any failure by a veterinary practitioner, without reasonable excuse, to comply with any continuing professional development requirements determined by the Board that are applicable to the veterinary practitioner, (f) any failure by a veterinary practitioner to supervise a person adequately in doing an act where supervision by a veterinary practitioner was required by law and the veterinary practitioner concerned undertook to provide that supervision, (g) any failure without reasonable excuse by the veterinary practitioner to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court imposed on the veterinary practitioner in his or her capacity as a veterinary practitioner, (h) any failure by the veterinary practitioner to comply with the applicable requirements of the Licensing and Registration (Uniform Procedures) Act 2002, (i) any contravention by a veterinary practitioner of this Act or the regulations, (j) any conduct that demonstrates that a veterinary practitioner is not fit to practise veterinary science because the practitioner suffers from an impairment, (k) any other conduct of a veterinary practitioner that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of veterinary science, (l) any other improper or unethical conduct of a veterinary practitioner in the course of the practice of veterinary science, (m) any conduct that is declared by the regulations to be unsatisfactory professional conduct for the purposes of this Act. (bold added) 19Section 37 of the VP Act provides that the regulations 'may establish a veterinary practitioners code of professional conduct setting out the rules of conduct that should be observed by a veterinary practitioner in carrying on the practice of veterinary science.' 20Clause 13 of the Veterinary Practice Regulation 2006 (the 2006 Regs) provides that for the purpose of section 37 of the VP Act, the code of conduct set out in Schedule 2 of the Regs is established as the veterinary practitioners code of professional conduct (the Code of Conduct). These Regs were the applicable regulations at the time the applicant treated the complainants' dog. We note the relevant provisions in the new regulations, the Veterinary Practice Regulation 2013, are substantially the same. 21Clause 11 of the 2006 Regs declares a number of specific breaches of the Code of Conduct to be 'professional misconduct' for the purpose of para. (b) in the meaning of this term in section 35 of the VP Act. The specific breaches of the Code of Conduct include the following: 1 Basic principles of professional conduct The basic principles of professional conduct for a veterinary practitioner are: (a) a primary concern for the welfare of animals, and (b) the maintenance of professional standards to the standard expected by: (i) other veterinary practitioners, and (ii) users of veterinary services, and (iii) the public. 2 Welfare of animals must be considered A veterinary practitioner must at all times consider the welfare of animals when practising veterinary science 4 Knowledge of current standards of practice (1) A veterinary practitioner: (a) must maintain knowledge to the current standards of the practice of veterinary science in the areas of veterinary science relevant to his or her practice, and (b) must always carry out professional procedures in accordance with those current standards. (2) A veterinary practitioner must base professional decisions on evidence-based science or well-recognised current knowledge and practice, or both. 5 Utilisation of skills of colleagues A veterinary practitioner must utilise the skills of colleagues, by consultation or referral, where appropriate 8 Availability to care for animal A veterinary practitioner must, when accepting an animal for diagnosis or treatment: (a) ensure that he or she is available for the ongoing care of the animal, or (b) if he or she will not be so available, make arrangements for another veterinary practitioner to take over the care of the animal. 22Clause 12 of the 2006 Regs declares a number of specific breaches of the Code of Conduct to be 'unsatisfactory professional misconduct' for the purpose of para (e) in the meaning of this term in section 35 of the VP Act. This clause is in the following terms: 12 Meaning of "unsatisfactory professional conduct" For the purposes of paragraph (e) of the definition of unsatisfactory professional conduct in section 35 of the Act, the following clauses of the code of conduct are prescribed: (a) clause 15 (Records), (b) clause 16 (Fees for veterinary services), (c) clause 19 (Special interest areas), (d) clause 21 (Inducements). 23A finding of 'professional misconduct' or 'unsatisfactory professional conduct' is defined in section 35 of the VP Act to be a 'disciplinary finding'. Where the Board makes such a finding, under section 47 of the VP Act, the person the subject of the finding has a right to seek administrative review, under subs 48(1) of that Act. 24The role of the tribunal is to determine the correct and preferred decision having regard to the applicable law and the relevant facts: see subs 63(1) of the Administrative Decisions Tribunal Act 1997(now Administrative Decisions Review Act 1997). That is the tribunal sits in the shoes of the Board and determines the matter a fresh as at the date of the hearing. 25There is no dispute that the tribunal has jurisdiction to hear and determine the applicant's application and in this regard, we note that decisions of the Board are not subject to internal review (see section 55 of the Administrative Decisions Tribunal Act 1997 and clause 5 of the Administrative Decisions Tribunal Regulation 2009 (as they applied prior to 1 January 2014)).

The complaint 26In their complaint to the Board, the complainants' said: 30th September 2012 We arrived at AEC at approximately 7:45 on 30/09/2012. A written detailed history of the case was provided. It had been well over 38 hours since the dog had a drink. Every attempt to drink resulted in vomiting out of bile and fluid. The dog was in desperate need of water and the only way it could be administered at this stage was via IV liquids. We had discussed the specific requirement with the vet and were told that the IV liquids were going to be provided as soon as possible. Gastric torsion was a distinct possibility and a prompt treatment is critical in such cases therefore we expected a rapid diagnosis that included blood tests, X-rays and ultra sounds if required. Instead the dog was locked up in a cage where he remained for 12 hours without food and water with only a cursory examination during that time. While clearly insufficient information was available at the time an enema was applied. Considering that the dog could have been suffering from gastric torsion or even intestine perforation this was especially dangerous. The dog was suffering from perforated bladder with urine sloshing inside of his abdomen. Even cursory examination by a qualified veterinarian would have been sufficient to determine that his condition was very serious, life threatening and requiring very prompt response. If we did not pick up the dog at 20:00 on 30th September 2012 he would have surely died. Instead we had to listen to excuses and were told very clearly that our case was not an emergency. It was purely due to luck that the neglect did not cause permanent kidney failure. 27As we have mentioned, the complainant's dog was a 10 year old de-sexed male German Shepherd. The AEC is, we understand, a group of Animal Emergency Centres that provide after hours vet care to sick and injured pets in Melbourne, Adelaide, the Central Coast, Brisbane and the Gold Coast. The AEC the subject of this application is that located at the Central Coast in New South Wales. Its owners are Dr Liia Kelman and Dr Greg Kelman, both of who are registered veterinarians. 2830 September 2102, was the Sunday of a long weekend and the applicant, an employee of AEC at that time, was the rostered veterinary practitioner on duty for the day shift on that day. She was assisted by a nurse, Angela Castellari. Another nurse was due to commence work at 1:00 pm that day, but she contacted Ms Castellari that morning to say she was ill and unable to work that day. 29There is no dispute that the complainant's arrived early that Sunday morning with their dog. They arrived with a written history about the dog having been unwell since the Thursday, 27 September 2012. They explained that the dog had problems with urination and that he was urinating often and posturing often. 30Dr Gallagher's record of the dog's history was: '.....[urinated] a lot overnight. Similar Friday, stop urinating often, appeared normal. Greeted owner then staggered & unable to walk properly, resting often, very stiff legs & abdo, breathing little. Appeared better sat SAN, started drinking, appeared normal then vomited, progressed to unable to keep water down. - Now: Keen to drink appears alert, getting weaker, vomits any water up after a few minutes - Has wobbly gait in hind limbs from paralysis episode as 2yo. now walking with "twist in back", appears painful. Chewed golf ball yesterday, has chewed toys - Urinated normally outside on arrival, appeared normal colour and consistency, slightly reduced volume ....' 31Dr Gallagher's record of her assessment of the dog was: 'Assessment: painful abdomen DDx: bloat GDV (gastric dilation/torsion) Foreign body Primary bladder pathology.' 32The complainants' signed a form consenting to treatment, anaesthetic and surgery. On that form, Dr Gallagher also provided an estimate of the cost of the services that would be rendered. The estimate fee range for the first 12 hours was stated to be 'between $1,200.00-$1,800.00.' The form also set out two options for treatment. The complainant's' had opted for option (a) which provided as follows: '(a) Admit, x-rays, bloods, IV Fluids, surgery if needed.' 33The complainant's left the dog at AEC. 34The treatment given to the dog was as follows: 'Treatment: 10:15 Rectal exam - prostrate mildly painful, not obscuring passage of faeces, faecal material 10cm in, softish. Butorphanol given. ... 16:00 Buprenorphine 0.45mg IN as became painful when stretching to x-ray. X-rays - limited information due to problem with machine and amount of faecal material obscuring part of the abdomen. Blood lactate performed to check for gastric obstruction: 3.7, good. Microlax enema given to promote emptying for more x-rays to better assess abdomen.' 35There is no dispute that the complainant's telephoned on several occasions during the day to see how their dog was going. At 8:00pm that evening the complainant's being dissatisfied with the treatment that had been given to their dog came to collect him. Prior to their arrival, at the request of the applicant, Doctors Liia and Greg Kelman also attended the practice. Dr Greg Kelman examined the complainants' dog and despite his advice that the dog should remain hospitalised, the complainants' took their dog home. 36Fifteen (15) hours later on 1 October 2012, the complainants took their dog to Green Point Veterinary Hospital. The Green Point Veterinary Hospital records state that the dog was admitted at 11:00am that morning, for a second opinion. The dog's condition at the time of admission and the treatment given that day was recorded as follows: '... 30/9 Presented to AEC early AM: received Torbugesic, no fluids, no bloods, non-diagnostic rads in arvo, O collected Boss in evening. 1/10 lateral Decubitus, unable to walk, vomited several times in consult, bright red mm, very dry mm, crt 2 sec, trachycardic HR 160/min, very painful and distended abdomen, severe OA both elbows, only one testicle present. Admitted: Temgesic IV fluids 11 stat IV, second litre fast, third rate 500ml/h, ampicillin 1,000mg IV Rads abdomen: no contrast on image suspect fluid, impression of mass in intestines????, corrugation of intestinal wall Ultrasound: massive amount of abdominal effusion, protein rich, yellow colour, small bladder, suspect mass in mesentery??? very hard due to all the fluid and amentum floating around, small bladder, thickened wall, looks intact at present. Bloods biochemistry in house: hyperkalemia (6.4), hyperproteinemia, hyponatremia, uraemic (creat 777) UROABDOMEN: secondary to bladderperforation due to suspected tumour poss necrotizing cystitis (less likely). phoned o bad prognosis permission for exlap know is big chance might be euthed on table or not make it informed of cots for surgery EX LAB repose IV-IVF-had temgesic Remove large amount (estimated 3-4l of fluid from abdomen) peritoneum and intestines markedly inflamed, cranial part of bladder diffusely hardened and thickened with central area of necrosis and small (4mm) perforation, ureters, urethra and bladder neck appear normal Phoned o during sxnd explained suspected bladder neoplasia usually transitional cellcarcinoma with bad prognisis o willing to try resection explained might not heal and could recur soon (weeks-months if carcinoma) Proceeded with cystectomy about 2/3 bladder ... 7.30 pm good recovery, poss urinated in cage ... 37It would appear that the complainants' dog remained at the Green Point Veterinary Hospital for a few days. In a histopathology report dated 5 October 2012, Dr S Yeomans Specialist Veterinary Pathologist is reported as having made the following comments in regard the tissue taken from the dog's bladder: No neoplasia seen. The thickening of the bladder wall is a result of fibrosis and muscular hypertrophy. This is a response to chronic bladder inflammation, the cause of which is not distinct on histology. Possible causes are the usual suspects such as bacterial infection and uroliths. Based on this sample I suspect bladder rupture was a result of acute obstruction rather than erosion through the bladder wall.

Did the applicant fail to carry out treatment in a timely fashion? 38The essence of the concerns of the Board is the applicant's failure to make an appropriate diagnosis of the dog while he was in her care. 39In this regard the Board submitted that the dog's presenting clinical signs and history 'should have given rise to a high index of concern on the part of the applicant that there may have been some serious underlying pathology.' 40While the Board concedes that it may have been reasonable for the applicant to suspect gastric dilation and volvulus in the first instance, it is submitted that by the early afternoon, the dog's symptoms were such that a diagnosis of progressive gastric distension was less likely as there was no further evidence of any distension. 41It is the applicant's failure to take appropriate steps to investigate other possible causes of the dog's clinical signs and her failure to provide supportive therapy such as IV fluids, which is of greatest concern to the Board. 42In her statement, Dr Child's evidence was that on the basis of the information recorded in Green Point Veterinary Hospital records, the dog's ruptured bladder had 'almost certainly' occurred at least 48 hours earlier. That is, it would have been evident had a proper diagnosis been made during the time the dog was under the applicant's care. 43Dr Child was critical of the applicant's decision to perform a blood lactate test, which was a non-specific test that is neither diagnostic, nor exclusive to any one cause. It is asserted that had the applicant obtained a serum biochemistry profile, and packed cell volume and total protein tests, these would almost certainly have shown the abnormalities that were detected by the Green Point Veterinary Hospital the following day. Such tests would have taken less than 5 minutes to do. 44In her oral evidence, the applicant acknowledged that in hindsight she could see that a blood test would have been prudent. However, she continued to rely on the conditions of the day which she stressed were very unusual. 45It was the evidence of the applicant that on 30 September 2012 she was rostered to work from 6:00am-6:00pm that day. As we noted above, she was assisted by nurse Castellari. When the nurse was scheduled to commence work at 1:00pm that day, no replacement was found and it was not until 5:30pm that afternoon when the applicant received some assistance. This was the time the evening shift vet commenced duty. 46The applicant's evidence was that she did attempt to contact Dr Kelman during the day and was only successful in doing so later that afternoon. However, they did not attend the practise until early that evening. 47We accept the applicant's evidence that she was busy on the day in question. That is, we accept that when she commenced work that morning seven animals were already in the hospital and required a high level of care. Between 7:30am and 11:30am she had five further consultations that took some and this was followed by a further five consultations during the afternoon. 48The applicant said she explained to the complainants that they were very busy, which the complainants acknowledged to be the case but wanted her to treat their dog. The applicant acknowledged she accepted the dog into her care, but she did this on the basis of their instructions as to his treatment. In this regard the applicant said, in accordance with the AEC's practices, she discussed the available treatment options with the complainants. In doing so, she said she obtained a sense that the complainants were conscious of the amount of money that they might need to spend. She said she understood their agreement to be that she would use a step by step approach. That is, the first step would be to take x-rays and once they had been taken she would contact the complainants and inform them of her findings and decide whether to go to the next stage. 49The applicant did endeavour to take x-rays but the equipment let her down. In her oral evidence the applicant was asked why she did not consider the other steps she had discussed with the complainants, she said the practise had a policy that where an owner accepts a particular form of examination, the veterinary is required to perform it. As we understood this evidence, this is primarily a costing policy. 50The Board was also critical of the applicant in that having accepted the care of the complainants' dog she failed to keep an eye on him throughout the day. The applicant's evidence was that at all times the dog was visible to her or Ms Castellari. We accept this evidence. 51In his Statutory Declaration, Dr Greg Kelman said that when he first saw the dog he observed him to be resting in his cage. He said he was responsive and sitting up. He went on to say that on examination of the dog he found he had a firm abdomen. He said he was unable to palpitate any specific mass or define cause of the firm abdomen on physical examination alone. He said he noted that the dog had been observed during the day and that serious conditions like gastric dilation - gastric torsion were not likely, as a result of previous diagnostic investigation. He said he had concurred with the opinion of the applicant that the dog was unwell, and should remain hospitalised for further diagnostic testing to be performed beginning with radiographs. 52As I have noted Dr Liia and Dr Greg Kelman both made statements for the purpose of this application and it is there evidence that the applicant had acted appropriately. This evidence was not challenged by the Board. 53As we have noted, it is the Board's contention that the manner in which the applicant treated the complainant's dog was contrary to her obligations under clauses 4, 5 and 8 of the Code of Conduct. At the hearing, the Board also relied on there having been a breach of clause 2. 54In our view, the essence of the Board's concerns is the failure of a proper diagnosis of the complainants' dog and the treatment thereof during the time he was at the AEC. Whether a blood test or the application of IV fluids would have led to a different result is, in our view difficult to determine. However, we are satisfied that there was an unacceptable delay in diagnosis and treatment of the dog. He appears to have been held in a holding pattern, primarily due to a lack of staffing and equipment and also a lack of procedures for dealing with situations of this kind. These are essentially matters for the owners of practises such as the AEC, which promote themselves as using the 'highest standards of emergency and critical care' for sick and injured animals. That is, procedures should be in place for arrangements that can be made by the on duty veterinary to call in assistance or refer an animal for diagnosis and treatment to another practise. No such arrangements appear to have been in place in this case. In this regard we note the requirement of clause 2 of the Code of Conduct which requires that the welfare of animals must be considered at all times. 55Nevertheless, the applicant, being a registered veterinary is also bound by the Code of Conduct and had a responsibility, in accepting the complainants' dog, to ensure that she made a proper diagnosis and treatment (if necessary) within a reasonable time. This we believe, the applicant accepts she failed to do, not because of any intention to do so, but due to the circumstances of the day. While some of these were outside of her control, in the absence of being able to reach Dr Liia Kelman and Dr Greg Kelman she should have made arrangements for another veterinary practitioner to diagnose and treat the dog. We understand the practical effect of such a decision, where it is made by a registered veterinary who is also an employee of a veterinary practise. However, an employed registered veterinary is no less bound by the provisions of the Code of Conduct than the registered veterinary principals of the practise. 56In our opinion, the gravamen of the applicant's conduct is her failure, given the circumstances of the day, to make these alternative arrangements. As we have noted, that failure was not intentional. Nevertheless it was a prima facie breach of clause 8 of the Code of Conduct. 57We do not otherwise find that the applicant has breached clauses 2, 4 or 5 of the Code of Conduct as alleged.

Having accepted the dog for diagnosis or treatment, did the applicant fail to ensure that she was available for his ongoing care etc? 58The Board appears to concede that the applicant was able to observe the complainant's dog in his cage during the time she was on duty. However the Board submitted that the applicant's mere presence was not sufficient to discharge her professional obligation to ensure she was available to provide ongoing care to the complainant's dog. Her professional obligation required her to be available to undertake appropriate and timely investigation and treatment of the dog's clinical signs. 59For the reasons given above, we agree with these submissions of the Board. That is, we agree that the obligation in clause 8(a) of the Code of Conduct required her to undertake appropriate and timely investigations and treatment of an animal's clinical signs. As we have noted, through circumstances of the day the applicant was unable to do so and she should have made arrangements for the complainants' dog to be transferred to another veterinary practise, or called in support from another veterinary such as Doctors Kelman. 60Once again, we note the responsibilities of Dr Liia Kelman and Dr Greg Kelman as the owners of the practise and also registered veterinaries in ensuring that there were procedures in place for sufficient staffing, or alternatively procedures for the transfer of sick and injured animals to another veterinary practise. It was they who represented the practise could deal with emergencies.

Did the applicant fail to offer timely referral to another veterinary practitioner? 61It is unnecessary for us to deal with this issue as it has already been dealt with above.

Does the applicant's conduct amount to unsatisfactory professional conduct or professional misconduct? 62As we have noted above, the Board found the applicant guilty of unsatisfactory professional conduct on the basis of having breached clauses 4, 5 and 8 of the Code of Conduct. In these proceedings the Board also contends that the applicant breached clause 2 of the Code of Conduct. 63We have found that the material before the tribunal establishes a prima facie breach of clause 8 alone. 64As noted in paragraph 22 and 23 above, breaches of this clause and clauses 2, 4 and 5 are prescribed as amounting to professional misconduct and not unsatisfactory professional conduct. That is, breaches of these clauses are regarded to be more serious than those prescribed in clause 12 for the purpose of unsatisfactory professional conduct. 65Accordingly, on the basis of our finding that prima facie the applicant breached clause 8 the appropriate disciplinary finding would be professional misconduct. As this was not a finding the applicant understood she was required to meet and given the circumstances of the day together with our finding that the applicant did not act intentionally in breach of her obligation under clause 8, in our opinion, it is not appropriate to make a disciplinary finding of professional misconduct. 66However, we share the concerns of the Board that conduct of this kind might arguably also amount to the less serious disciplinary finding of unsatisfactory professional misconduct and recommend consideration be given as to whether the regulations should be amended.

Conclusions and orders 67On the basis of our findings the decision of the Board is not the correct and preferred decision. Accordingly, the appropriate order is to set aside the decision of the Board. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2014

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